Articles Posted in LGBTQ Discrimination

Under Title VII of the Civil Rights Act, it’s illegal for covered employers to discriminate against a job applicant or employee on the basis of sex, among other protected characteristics. However, discrimination on the basis of sexual orientation has not been explicitly prohibited. In a 2017 case, Hively v. Ivy Tech Community College of Indiana, the Seventh Circuit held that discrimination on the basis of sexual orientation is a form of sex discrimination under Title VII. This ruling is different from the holdings of the nine other circuits.

The case arose when Hively, an openly lesbian adjunct professor, started teaching at a community college. She unsuccessfully applied for six full-time positions at the community college between 2009 and 2014. She believed that she was not getting hired full-time due to her sexual orientation and filed a charge to this effect with the Equal Employment Opportunity Commission (EEOC).

In court, the community college tried to get the case dismissed on the ground that sexual orientation was not a protected class under Title VII. The district court dismissed the case with prejudice. Hively appealed. A panel of the appellate court affirmed. It reasoned that discrimination based on sexual orientation was different from sex discrimination. The other circuits understood Title VII similarly.

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In July 2015, a Wal-Mart employee sued her employer in federal court, alleging that the corporation had intentionally deprived her of spousal health insurance benefits because she and her spouse were of the same sex. She’d worked for the company for 15 years.

This lawsuit was filed a few weeks after same-sex marriage was legalized by the United States Supreme Court in Obergefell v. Hodges. This holding had broad implications for many areas of law, including the issue of health insurance provided to the spouses of employees. Prior to this holding and an earlier ruling related to federal spousal benefits that struck down the federal Defense of Marriage Act, employers tended to believe they were entitled not to recognize same-sex marriage. For three years before 2014, the company would not pay health insurance benefits to employees involved in same-sex marriages.

Wal-Mart started to provide benefits to same-sex couples in 2014. About 1,200 employees signed up to get these benefits. By then, the named plaintiff’s wife had developed ovarian cancer and had incurred $150,000 in out-of-pocket expenses.

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About 429,000 workers who identify as lesbian, gay, bisexual, or transgender live in Texas. According to the Williams Institute, there are about 666,000 LGBT adults in the state, including those working. Discrimination against LGBT employees is prevalent in Texas and across the country, with about 21% of those LGBT employees responding to a 2013 national survey that they’d been treated unfairly by an employer in terms of their hiring, pay, or promotions.

The same or even more discrimination in the workplace has been reported by transgender people. About 79% of respondents from Texas in the largest survey of transgender workers to date reported they’d experienced mistreatment on the job. The discrimination extends to disparity in pay. The median income of men in same sex couples in Texas has been reported as 9% less than the median income of men in opposite sex marriages.

Unfortunately, Texas doesn’t have a state law that explicitly protects these workers from discrimination based on their sexual orientation or gender identity. There are four cities that do provide protection in the form of ordinances against gender identity and sexual orientation discrimination in public and private sector jobs. Seven more cities protect their own local government workers from discrimination on these grounds. Still, that leaves about 86% of Texas employees without any state or local protection for being gay, lesbian, bisexual, or transgender. Therefore, remedies for workers who face discrimination on these grounds are limited.

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Most employees take it for granted that they will have access to a restroom. Recently, however, the news has shed light on the particular difficulties that transgender individuals face when they need to use the bathroom.

Texas legislators are considering a bill (Senate Bill 6) that would prohibit transgender individuals from using the bathroom that corresponds to their gender identity. This is a harmful measure that would potentially keep transgender individuals from being in public spaces. Supposedly, this is to protect cisgender individuals, but such laws support people’s private and unfounded prejudices, which has the effect of actually endangering transgender individuals.

Often, transgender individuals are confronted or otherwise treated with hostility, no matter which gender’s restroom they use. Employers are legally required to give their workers reasonable access to restrooms, and transgender employees must be able to access bathrooms in their workplace to be able to work and support themselves.

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